Waste project ruling plunges NI planning into crisis

Northern Ireland’s planning regime for key projects has been left in crisis following a legal judgment this week.

The Belfast High Court ruled that Peter May, a senior civil servant, had no power to approve Arc21’s major waste management scheme, which included an energy-from-waste facility earmarked for a site at Mallusk, County Antrim.

Planning consent for the £240 million project was granted last September by the Department for Infrastructure (DfI).

However, in a judicial review ruling, Mrs Justice Keegan said that despite the absence of a working assembly and minister the decision still should be made by a minister and not civil servants.

This ruling has serious implications, and not just for planning. All Stormont departments will be affected, said Michael Gordon, head of consultancy Turley’s office in Belfast.

He told The Planner: “We are still studying the judgment and taking advice but at face value the judgment has fundamental ramifications for all government departments in Northern Ireland, including planning.”

He warned that the ruling effectively removed the ability of the DfI to make planning decisions in the absence of a minister, regardless of any pressing public interest need.

“This means that the most complex and important planning decisions in Northern Ireland cannot now be decided until the current political impasse is overcome or correcting legislation is passed. This requires either the Assembly to be restored, or some form of direct rule arrangement put in place, which itself requires primary legislation from Westminster,” he said.

Gordon added: “The judgment puts all applications currently before the department into a state of limbo. At present a total of eight applications have either been ‘called-in’ by the department or deemed regionally significant. These include the GAA’s Casement Park project, large-scale onshore wind farms, the new gas-fired power station in Belfast harbour and regionally significant transport infrastructure.

“It appears that until such time as a minister is in place, either locally or from Westminster, no decision can be made on a current application being processed by the department. It also calls into question recent decisions made by the Permanent Secretary like the approval of the North South Interconnector, by querying the department’s decision-making authority."

Gordon suggested the judgment could have significant implications for much of the planning regime. “Whilst law is for the lawyers, one reading of the 20-page judgment is that it essentially dismantles the two-tier planning system that was envisaged in the Planning Act (Northern Ireland) 2011.

“It could significantly impact the department’s ability to fulfil its role as the department responsible for safeguarding the Northern Ireland planning system through the exercise of its call-in powers and, potentially, affect council plan making.

“The judgment will surely have implications for any new projects that would ordinarily be determined by the department, with applicants potentially choosing to tailor their proposals to avoid having them determined as regionally significant and the impact that could have on the department as a planning authority.”

Gordon said it was clear that the success of the challenge went well beyond planning and could affect day-to-day decisions on health, education and other day-to-day priorities.

“A prompt political or legislative response is essential for good government in Northern Ireland,” he insisted.

Roisin Willmott, RTPI director for Northern Ireland, echoed Gordon’s concern. She said: “This decision has serious ramifications for delivering investment in Northern Ireland in the current political void, and is set against a backdrop of planners continuing to work hard to deliver for communities.

“A minister would normally be required to make decisions on projects of this scale in the interests of the public good, and would base this on advice received from the Planning Appeals Commission. If the lack of political leadership continues and senior civil servants are unable to make decisions which have been carefully balanced on agreed policy, then a new protocol needs to be agreed to allow for investment to continue in the absence of a minister.”

The DfI has confirmed that it intends to appeal the High Court judgment in relation to the planning application for the proposed Arc21 waste treatment facility.

In a statement the DfI said: “The department is seeking clarity on the law in this case and in relation to decision making on other regionally significant planning applications.

“The department is clear that it would be preferable for these decisions to be taken by ministers, however it has a duty to process planning applications and other planning cases and failure to do so has wide ranging implications for the Northern Ireland economy and the environment. It is therefore important to have clarity on the legal position in the continued absence of ministers.

“While the appeal process is underway, the department will not take any further decisions on regionally significant applications and continues to carefully consider the full implications of the judgment on other planning cases. The department will continue to progress applications in readiness to reach a final decision.”